Electronic Discovery Navigator

Predictability and Consistency in eDiscovery

Here's a strategy for managing electronically stored information ("ESI") and eDiscovery that Chris Paskach suggests would lower the costs in responding to requests for ESI and provide greater predictability and reduced risks.

1. Prepare : Preparation is proactive and needs to be undertaken before an e-Discovery event occurs. It involves understanding all of a company's ESI and assessing the processes and risks related to creating, retaining and retrieving ESI in the normal course of business and in response to regulatory and litigation events.

2. Plan : Planning is also proactive and refers to having plans in place to identify, preserve and review ESI in response to the typical requests a company is likely to receive. In addition, event-specific planning is reactive and requires understanding and addressing a specific request for ESI when it occurs.

3. Preserve : Preserving ESI in response to a specific e-Discovery event is reactive and involves the issuance and implementation of litigation holds and performance of forensic data preservation processes.

4. Pare : Paring down the high volumes of potentially responsive ESI is also reactive and involves applying the most effective filtering techniques to focus high-cost resources on the documents that relate to the matter at hand, while minimizing the effort expended on unrelated and irrelevant documents.

5. Process : Processing the ESI related to a specific event is also reactive. The review tools and processes should be focused on achieving the highest efficiency and reliability in the review process.

6. Produce : Producing the responsive, non-privileged documents in a matter is reactive and should support the efficient production in the agreed formats, combined with reliable tracking of all documents that have been produced.

(Source: http://www.metrocorpcounsel.com/pdf/2007/March/35.pdf.)

Court Denied Motion for Forensic Inspection of Hard Drives

Memry Corp. v. Kentucky Oil Tech., N.V., Case No. 04-03843 (N.D. Cal. Mar. 19, 2007) (Not for Citation)

Counterclaim-Defendant Schlumberger Technology Corporation ("STC") moved to compel Defendant/Counterclaim-Plaintiff Kentucky Oil Technology ("KOT") to produce an intellectual property evaluation conducted for one of KOT’s predecessors-in-interest and original documents, including computer hard drives.

Of interest is the latter request in which STC sought KOT's computers and storage media for forensic inspection by a third party consultant pursuant to a protocol to be determined by the parties or the court.  STC's bases for the request are KOT's "selective and incomplete document production" and failure to preserve hard drives.  The court denied STC's request for three reasons.

The Verdict's In on ABA Techshow

For those who missed the ABA Techshow 2007 last week, here's a summary from www.law.com by Brett Burney.  Not surprisingly, eDiscovery took the spotlight, with Judge Shira Scheindlin (author of the landmark Zubulake decisions) delivering the keynote address.

Judge Scheindlin addressed the importance of preparing for the Rule 26(f) "meet and confer" by learning where and how your client stores electronic records and information. Bringing this knowledge to your initial meetings with opposing counsel, and actually sharing that information with them, indicates a change in law practice that does not sit comfortably with many attorneys. Judge Scheindlin recognized the struggles attorneys and judges will face in the near future as they legally define terms like "inaccessible data," "reasonably usable format," and "routine operation of an electronic system."  (Emphases added.)

(Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1174912594541.)

Survey Shows Businesses Still Not Fully Prepared for FRCP

According to this report, a recent survey by Fortiva showed that "94 per cent of those people responsible for email policy do not feel their organization is fully prepared to meet FRCP requirements."

The survey, which was conducted during the last week of February, found that almost half of the respondents (45.9 per cent) have no retention policy for email, an important step in meeting FRCP rules. In addition, only 8.4 per cent of respondents have met one of the most critical requirements outlined by the FRCP amendments: putting a litigation-hold procedure in place. While 10 per cent of respondents have made changes to the policy to meet FRCP, over 20 per cent are still in the planning stage and 36 per cent were not sure if changes were planned.

Additional findings from the survey include:

• 56.7 percent of respondents that are responsible for email policy are in IT, while 6.8 per cent are in the legal department;
• 25.4 percent of respondents said their organization has responded to an e-discovery request at least once in the past three years, while 24 percent didn't know/weren't sure;
• 45.6 percent of respondents said their organization does not have an official email retention policy; users keep their email as long as they like;
• Only 25.5 percent of respondents said that legal counsel directives influenced their retention policy.

(Source: http://www.dmreview.com/article_sub.cfm?articleId=1079164.)

Growing Pressure for Data Classification

Here's an interesting article about strategies for organizing data.  As to eDiscovery issues, the author recommends classifying data in a few simple categories (e.g., "Regulated record," "Historical business record," and "Temporary nonrecord") to help with data retention, since "enterprisewide records retention are often stymied by their employees’ inability to understand all of the different categories and retention periods their records may be subject to."

(Source: http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9014071.)

Court Ordered Non-Party to Pay Cost of Retrieval of E-Mails and Plaintiff Reasonable Cost of Production

United States ex rel. Parikh v. Premera Blue Cross, Case No. 06-MC-00097 (S.D. Ohio Mar. 16, 2007)

PricewaterhouseCooopers ("PwC") is a non-party in this discovery dispute.  Defendant Premera Blue Cross ("Premera") hired PwC to audit its receipt of Medicare payments.  In November 2006, PwC was ordered by subpoena to produce all emails between it and Premera.  PwC produced some but not all of the requested electronically stored information ("ESI").  So, qui tam Plaintiff filed a motion to compel.

Another Obscure Repository of Electronically Stored Information Worth Checking Out

I was reading this story and a light bulb lit up in my head.  Photocopiers made in the last five years have hard drives in them.  When you photocopy a document, it is duplicated and stored until the hard drive is full and new data overwrites it.  So, for those looking for electronically stored information ("ESI"), photocopiers might be another obscure repository worth checking out.

Note:  According to the story, a Sharp survey indicated that 54% of those polled did not know that digital photocopiers store an image of what is duplicated.

Court Ordered Inadvertently Disclosed Privileged Document Destroyed

Pierce v. Girl Scout of Greater New York, Inc., Case No. 06-cv-05456 (S.D.N.Y. Mar. 9, 2007)

This discovery dispute shows how the court would handle an inadvertent disclosure of privileged information where no claw-back agreement exists between the parties.  (FRCP Rule 26(b)(5)(B) addresses the claw-back issue.)

Defendants sought sanctions and a protective order to require Plaintiff to return or destroy a single privileged email that was inadvertently produced in discovery.  The email was an inquiry seeking legal advice and the response from Defendants' counsel, which the court concluded was "a privileged communication."

Sanctions Not Justified for Production of Voluminous Data

Static Control Components, Inc. v. Lexmark Int'l, inc., Case No. 04-00084 (E.D. Ky. Mar. 16, 2007)

In this discovery dispute, counterclaim defendant Pendl Companies, Inc. ("Pendl") sought sanctions against defendant/counterclaim plaintiff Lexmark International, Inc. ("Lexmark").  Pendl contended that Lexmark sent them on a "wild goose chase" by producing approximately 6 million entries in a database of information that turned out to be non-responsive to Pendl's Interrogatory No. 5.  Lexmark countered that Pendl was simply complaining about a large amount of responsive data that they themselves had requested.  Lexmark pointed out that a portion of the information it produced was a large file of data provided by Environmental Reclamation Services, which Lexmark did not alter in any way (because it would have been improper to do so) and which it relied upon in the same format in which it had received them.  Lexmark also made clear that Interrogatory No. 5 requested information it did not possess.

Intel E-mails Lost Due to IT Manager Error, Lawyer States

According to the latest report, emails of 151 employees that Intel lost were due to a single IT manager who misread a spreadsheet.  "Apparently the names [of these employees] were categorized across multiple tabs, if general counsel D. Bruce Sewell's remarks are accurate, and this single manager didn't click on the tab where the 151 were listed.  As a result, they never received backup instructions."

Some of the lost emails were reportedly those of several senior executives, including CEO Paul Otellini, Chairman Craig Barrett, and SVP Sean Maloney.

Mr. Sewell stated, "We've got a $10 million discovery-management program, and yet that human interface can often be overlooked ... Talk to your IT department."

Comment:  I agree partly with Mr. Sewell's assessment, but the legal duty still falls squarely on counsel to make sure the litigation hold is executed properly, as discussed in my previous post.